Possibly incriminating statement allowed in hammer attack

Published October 18, 2012 - 12:05am

By JOHN BURNETT

Tribune-Herald staff writer

A judge has ruled as admissible a possibly incriminating statement made by a man accused of a brutal hammer attack during a robbery attempt to a state Department of Public Safety worker as the suspect declined a bail study.

Lisa Jobes, a pretrial service officer for DPS, testified Wednesday in Hilo Circuit Court she was told by Robert Diego: “‘What I did was wrong and I’m just going to go to court and ask to be placed at H-triple-C (Hawaii Community Correctional Center).’”

“And that was a direct quote,” said Jobes, who testified she relayed the quote to police as a matter of policy.

Judge Greg Nakamura ruled that the statement, and others made by Diego to police without being informed of his Miranda rights, were made voluntarily and can be used at his trial, which is scheduled to start on Oct. 29.

Diego, 69, is charged with attempted second-degree murder, first-degree assault and first-degree robbery for the alleged attack on Hilo coin and antique dealer Don Nigro, then 65, on June 13, 2011, in Nigro’s Hilo apartment.

Diego’s court-appointed attorney, William Heflin, told the judge that he found Jobes’ relaying of Diego’s statement to police disturbing.

“Frankly, as a policy matter, I have some concerns whether people are invoking their right to remain silent, and later on, an agent of the state, as I believe Miss Jobes is … is conveying information and statements made by people in custody to the police,” he said. “I think that’s clearly unconstitutional. … I believe these statements … are in violation of my client’s rights to be informed that any statements made to her could and would be used against my client.”

Asked afterwards if he planned to appeal the judge’s ruling, Heflin responded: “Obviously, if we lose I will.”

Hilo Patrol Officers Casey Cabral and Crystal Kekela testified they were the first to respond to Nigro’s Hualalai Street apartment and found Nigro lying on the floor, bloody and crying for help, and Diego standing over him with blood on his shirt, trousers and hands. Both said that, at that point, Nigro had a hammer in his hand. Nigro told the Tribune-Herald from his hospital bed the day after the attack that Diego had dropped the hammer when police arrived.

Kekela said that Diego had made an unprompted statement before being arrested, but the only word she “could make out was ‘homosexual.’” Nigro said last June that Diego had told police Nigro had attempted to sexually assault him, a story Nigro said was false. He said Diego asked to meet Nigro privately in the coin dealer’s apartment to show him some valuable Hawaiian coins he allegedly was trying to sell.

Both Cabral and Kekela said the statements were made before Diego was arrested and before police determined he was a suspect, and that he had not been read his Miranda rights.

Said Heflin: “It strains credulity to think that my client wouldn’t have been a suspect.” He added that Diego should have been apprised of his rights before then.

Detective Ernest Matsumoto testified that after Diego’s arrest and charge, county Fire Department medics came to the police cell block to treat a finger injury Diego had sustained.

“They asked him how he got his injury and he told them he got bit,” Matsumoto said.

Nakamura ruled those statements could be used at trial, as well.

Heflin also requested a change of venue for the upcoming trial, citing pretrial media reports he described as “not completely true.”

“The media reports indicated that Mr. Diego back in 2002 was accused of stealing caskets, leaving bodies buried in the dirt or in (body) bags, and … at least from what I can tell by talking to the assigned attorney general for that case … he was never actually charged with or convicted of that,” Heflin said. “… He was arrested for 37 (counts of second-degree theft) and one theft first, and he only pled to one count of theft first.”

Deputy Prosecutor Darien Nagata argued against moving the trial, citing extensive publicity before the trial of Frank Pauline Jr. for the Christmas Eve 1991 rape and murder of Dana Ireland in lower Puna. Now retired Hilo Circuit Judge Riki May Amano declined a defense request to move the high-profile trial.

“The articles mentioned Pauline’s criminal record, including the fact that he had been indicted for a child rape and that he was (at that time) serving a 10-year prison term for raping a woman,” she said. “An article even mentioned that he had never married but had fathered three sons.”

Nakamura denied Heflin’s motion, saying he believes “a fair, impartial jury” can be found in Hilo.

“The court believes … pretrial publicity regarding this defendant is not so prejudicial as to warrant a change of venue,” the judge said.

Diego is also charged with two counts each of attempted first-degree murder and criminal solicitation of first-degree murder for allegedly twice trying to hire a hit man to finish the job on Nigro. According to the indictment, the solicitations allegedly took place on June 16 and Aug. 10, 2011, while Diego was incarcerated at HCCC.

A separate trial on those charges is set for Nov. 19, also before Nakamura.

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